QUINN AND v POLICE [2019] NZHC 875

QUINN AND v POLICE [2019] NZHC 875 [16 April 2019]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT INPARA [15] UNTIL THE FINAL DISPOSITION OF TRIAL.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-119[2019] NZHC 875BETWEEN JOHNNY QUINN ANDPATRICK QUINNAppellantsAND NEW ZEALAND POLICERespondentHearing: 16 April 2019Counsel: A Bloem for AppellantsR Thompson for RespondentJudgment: 16 April 2019Reasons: 17 April 2019REASONS JUDGMENT OF WHATA JSolicitors: Meredith Connell, Auckland[1] Patrick and Johnny Quinn are jointly charged with seven charges of obtainingby deception, pursuant to s 240(1)(a) and 241(a) of the Crimes Act 1961. PatrickQuinn is separately charged with one charge of obtaining by deception. They arebrothers and British nationals. They sought name suppression in the District Court onthe basis that publication of their names would be likely to create a real risk ofprejudice to a fair trial. They say that their activities have been highly publicized bothin New Zealand and internationally and there is widespread miscommunication abouttheir connection with other groups of British and Irish tourists in New Zealand,popularly known as the "unruly tourists".[2] At the hearing of this matter I indicated that I would dismiss the appeal. Myreasons now follow.District Court decision[3] Their application before the District Court was dealt with succinctly. JudgeR J Collins rejected the appellants' unfair trial claim. The Judge noted:1[3] Trials are conducted in this country on a regular basis of peoplewho are associated or parts of various groups. An actual proved acceptedassociation of those groups makes no difference at all or impacts not at all ona fair trial. I am simply not satisfied that the publication of the defendants'names would bring about an unfair trial in this country if in fact not guiltypleas are to be entered and trial by jury elected. I also have no doubt that aNew Zealand jury, as they do on a daily and weekly basis, follow the directionsof the trial Judge to judge the case solely on the evidence before the jury. Soin respect to both Mr Patrick Quinn and Mr Johnny Quinn, applications forname suppression are declined.Jurisdiction[4] The jurisdiction to grant name suppression is set out in the Criminal ProcedureAct 2011. More specifically, s 200 of the CPA states:200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name,address, or occupation of a person who is charged with, or convictedor acquitted of, an offence.1 Police v Quinn HC Auckland CRI-2019-004-001048, 14 February 2019.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(d) create a real risk of prejudice to a fair trial; or(4) Despite subsection (2), when a person who is charged with an offencefirst appears before the court the court may make an interim orderunder subsection (1) if that person advances an arguable case that oneof the grounds in subsection (2) applies.(5) An interim order made in accordance with subsection (4) expires atthe person's next court appearance, and may only be renewed if thecourt is satisfied that one of the grounds in subsection (2) applies.[5] As the Court of Appeal stated in Robert v New Zealand Police, this sectionestablishes a two-step test:2(a) Stage one is a threshold determination: The Judge must considerwhether he or she is satisfied that any of the threshold grounds listed ins 200(2) have been established. (That is to say, whether publicationwould be likely to lead to one of the outcomes listed in subs (2)).(b) Stage two is a discretionary assessment: The Judge weighs thecompeting interests of the applicant and the public, taking into accountsuch matters as whether the applicant has been convicted, theseriousness of the offending, the views of the victims and the publicinterest in knowing the character of the offender.[6] There is no consensus, however, as to whether an appeal against a decision todecline suppression is an appeal against a discretion or a general appeal. It isunnecessary for me to resolve this issue because, for reasons I will shortly explain, theoutcome is the same whatever approach is taken.2 Robertson v New Zealand Police [2015] NZCA 7 at [39]-[41].Argument[7] Mrs Bloem submits that media hyperbole about the so called "unruly tourists"and "roof scammers" and media misinformation about the potential connectionbetween these two groups and the appellants creates a risk of unfair prejudice at trial.Mrs Bloem produced media coverage appearing to link the appellants to these groups.She contends therefore that there is a risk that the negative vilification here andoverseas about these "unruly tourists" and the "roof scammers" may unfairlypredispose jury members against them.Evaluation[8] The protection of the right to a fair trial may provide good reason to suppress.In R v B the Court of Appeal suppressed the name of a defendant facing allegations ofsexual offending across separate trials. William Young P (as he then was), havinggoogled the defendant's name, concluded that in the absence of interim namesuppression there would be a substantial risk (indeed likelihood) that some jurorswould have learnt he was facing (or had faced) allegations of other sexual offending.3There Court there also expressed reservations about the effectiveness of directions saynot to google, noting in fact that this might be seen as invitation to google.4[9] The mass media vilification of so called "unruly" British tourists and "roofscammers" may present a risk of unfair prejudice to the appellants where a connectionis drawn between appellants and these groups. Publication of the appellants' namesmay also lead to additional local and international media coverage about them. Thiscoverage might wrongly implicate the appellants in other wrongdoing. But inagreement with the District Court Judge, I am satisfied that suppression is neithernecessary nor justified in this case. The risk of prejudicial effect is largely speculativeand what prejudice I can reasonably discern from the available information can beadequately mitigated by jury direction.[10] To elaborate; first, it is not clear to me what, if any, connection the appellantsmight have to the "unruly tourists" or the "roof scammers". Second, assuming there3 R v B (CA459 /05) [2008] NZCA 130, [2009] 1 NZLR 293 at [78].4 At [79].is a connection, it is not clear to me that what impact the connection may have on theappellants. But I have seen nothing in the press coverage produced by Mrs Bloem thatcomes close to the potential prejudice warded against in R v B.[11] Third, unlike R v B, I was not told about any potential history or allegations ofoffending by the appellants that might be found on the internet. I am not prepared toassume there is such information to be found. Mrs Bloem did express concerns aboutan association drawn by the media between the appellants and the alleged roofscammers. But, self-evidently, suppression has done nothing to prevent theassociation being drawn. While, I agree that any alleged linkage to "scammers" isproblematic and to be deplored given that the appellants are facing active deceitcharges, ongoing suppression is not the obvious remedy for it.[12] Fourth, I do not share the concerns raised by the Court in R v B about theefficacy of jury directions in the context of the present case. Those directions couldinclude directions to disregard any prior knowledge they may have about theappellants, to base their decisions only on the evidence, and to put aside any personalprejudice they may have, whatever its genesis, including the appellants' potentialmembership of an unlikeable group. This, in fact, is a common enough occurrencewhere a defendant may be linked to a gang and the offending attracts mass mediacoverage. While the implications of such connection and coverage must be weighedby the trial judge at the time of trial, it remains orthodox practice to deal with theassociated fair trial risk by way of direction, sometimes in strong terms.5[13] As the Supreme Court noted in Mahomed v R:6In criminal trials it is routine for evidence of direct relevance to the allegedoffending to reflect badly on the defendant, perhaps in terms of the defendantbeing a gang member, a drug user, an associate of criminals or having anti-social attitudes. The risk of unfair prejudice associated with such evidence isusually addressed simply by the judge warning the jury in general termsagainst being influenced by prejudice or emotion.5 R v Milligan [2009] NZCA 344 at [41].6 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [57]. I acknowledge that the Court herewas dealing with the black character implications of misconduct by the defendant toward thevictim. But even so, the point about practice remains apposite.[14] Moreover, I consider that the impact of media coverage will not be assignificant as Mrs Bloem makes it out to be by the time of trial. While the so-called"unruly tourists" and "roof scammers" attracted some notoriety over summer, by thetime of trial (up to 10 or so months away), they will be, in short, old news. And if Iam wrong about that, a jury direction, commensurate with the need for it, shouldsuffice to mitigate any potential unfair prejudice.[15] Given the above, and the presumption favouring open justice, the appeal isdismissed. The names of the defendants are no longer suppressed.